The mandatory nature of Section 13(2) of the PFA Act and the prosecution's obligation to prove that the accused was informed of their right to get the sample analyzed from the Central Food Laboratory.

Iqbal Ahmed Ansari, J.

1. This revision has arisen out of the judgment and order, dated 17.2.1997, passed, in Criminal Appeal No. 54 of 1996, by the learned Sessions Judge, Kamrup, dismissing the appeal and upholding the judgment and order, dated 4.10.1996, passed, in CR Case No. 999 of 1993, by the learned Chief Judicial Magistrate, Kamrup, Guwahati, convicting the accused-petitioner under Section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act (hereinafter referred to as the PFA Act) and sentencing him to suffer rigorous imprisonment for three months and pay a fine of Rs. 1,000/-

2. The case of the prosecution, as unfolded at the trial, may, in brief, be stated as follows:

On 16-07-1993, on receipt of information, Sri R.P. Barua, Executive Magistrate, Guwahati, requisitioned the service of Sri Khagendra Nath Goswami, Food Inspector, whereupon the said Food Inspector (PW1), accompanied the said Executive Magistrate, visited the premised of M/s. Mausumi Enterprise, situated at Fatasil Ambari, Guwahati. The accused-petitioner, who was present at the said premises, introduced himself as proprietor thereof. At the said premises, sweetened Carbonated Water, popularly known as cold drinks, were found being manufactured and also stored for sale for human consumption. It was also found there that in the said manufacturing process, glass bottles of beverages of established brand names, such as, Campa, Nova, Rush, Trip and Thrill were being used for bottling the said carbonated water. The said bottles were being filled up with the liquid manufactured at the said premises and the same were being stored for sale for human consumption under the said brand names. The Food Inspector collected samples of the said carbonated water and the samples, so taken, were sealed and packed, observing the formalities prescribed under the prevention of Food Adulteration Act (hereinafter referred to as the PFA Act) and the Prevention of Food Adulteration Rules (hereinafter referred to as the PFA Rules). The entire stock of the filled bottles found at the said premises was seized and the zimma thereof was given to the accused. One of the samples of the of cold drink, so taken, was sent for chemical analysis. In course of time, the Public Analyst, who examined a part of the sample, opined, vide his report (Ext. 10), that the same was misbranded. After obtaining requisite sanction for prosecution, Sri A.C. Sarma, Food Inspector, lodged a complaint in the Court of Chief Judicial Magistrate, Kamrup, Guwahati.

3. During trial, the accused-petitioner pleaded not guilty to the charge framed against him under Section 16(1)(a)(i) read with Section 7 of the PFA Act. In support of their case, the prosecution examined two witnesses. The accused was, then, examined under Section 313 Cr. P.C. In his statement, so recorded, the accused-petitioner denied that he had committed the offences alleged to have been committed by him, the case of the defence being that of denial. In support of their case, the defence also adduced evidence by examining one witness.

4. On conclusion of the trial, the learned trial Court, on finding the accused-petitioner guilty of the charge framed against him, convicted him accordingly and passed sentence against him as hereinabove mentioned. As the appeal preferred by the accused-petitioner also failed to yield any favourable result, the accused-petitioner has, now, impugned the same in the present revision.

5. Since none appeared on behalf of the accused-petitioner, this Court appointed Sri A. Rajsekhar, learned counsel, as the Amicus Curiae and accordingly heard him. Also heard Mr. F.H. Laskar, learned Additional Public Prosecutor, Assam, for the opposite party.

6. There is no dispute before me that the only material grievance, which was taken by accused-petitioner, at the time of his trial, was that no notice, in terms of Section 13(2) of the PFA Act, had been served on him. In short, the accused denied to have rec